[ The "conference" referred to is on the IGC/APC systems. --Gary ]
FROM ELAW PHILIPPINES
A Transplanted Democracy
Tentative Notes of Indigenous Law, Ancestral
Domain and Pending Legislation Thereon
A Condensation and Conglomeration of the Works of the Authors
By:
Atty. Marvic F. Leonen
Atty. Augusto Gatmaytan
Atty. Ma. Paz G. Luna
Artificial Divide
With three million Filipino families living below the poverty
line, little debate can be raised today as to the turmoil our
society has come to. It is sometimes still difficult to come to
terms with the fact that each person is as much an ingredient of
society's turmoil as he is its product. Many people have
convinced themselves of their impotence in initiating change,
conveniently ignoring that social position is not a given nor
inherent in personhood. Others have taken advantage of this
inertia, playing upon learned helplessness of the majority to
impose their will and borrow alien systems of law and society to
perpetuate their domination.
This artificial divide between the rich and the poor was
created and nurtured by such prejudice laden terms as "indios",
"principales", "unChristianized tribes", and "minorities". The
term "minorities", for instances, should particularly baffle one
who has not hear the term used for certainly, the Ifugaos may be
just as many as the Batanguenos, but the latter are not called
minorities.
Even the Supreme Court, in 1919 joined the fray, effecting an
institutionalized discrimination under a so called democratic
society. In Rubi v Provincial Board, the Mangyans of Mindoro were
referred to as "backward, primitive and barbaric."
Indigenous cultural communities who created and flourished in
democratic legal systems within their social context probably know
a great deal more about democracy than those who presumptuously
believe that they brought the concept to our shores.
Indigenous systems of rule-making can teach us a great deal about
how to run a real democracy. The peoples of different regions are
not eager for a messiah. They are not clamoring for the creation
of another layer or agency of government as politicians
uninitiated in their systems are wont to give them. They want to
be respected and empowered, not by eliciting their vote in inane
referenda but in participating in decisions which affect their
lives, their well-being and in controlling their just share in the
country's resources. Indigenous Democracy and the Prevailing
Legal System
We are living in a transplanted legal system. Our body of
law is a mongrel of those of our colonizers with no input from our
rich indigenous legal traditions. This prevailing system, as can
be expected, has not given meaning to the concept of genuine
democracy that indigenous peoples live by. Lawyers, in part, are
to blame for this sorry state of affairs. traditionally, a lawyer
manipulates the laws but accepts them without question. Much of
his work entails maneuvering that ignores grave structural and
economic imbalance. His oath and the canons by which he is
supposed to practise his profession recognize clearly the public
interest nature of lawyering but fail to enshrine it in the
content and manner of making lawyers.
Fortunately, small beginnings are taking root at the UP
College of Law where Indigenous Law as an elective has been
offered for the past five years. It takes more than one subject,
though, to overthrow the encrusted character of passivity and
inertia which law schools seem to breed. A complete turn around
in philosophy should be considered in order to recognize the
inability of the legal profession to w3address social ills.
Sizable dents in the traditional concept of lawyering have
been made by such pioneers as Sen. Jose Wright Diokno who
developed the concept of Developmental Legal Aid (DLA). DLA is
premised on a recognition of the turmoil of society caused by
structural political and economic imbalance. Although it accepts
that law is an objective reality, it posits that it is not a
neutral phenomenon but a creation of culture, an objective,
cultural and historical expedient. Thus, it proposes that a
lawyer should
}i{_}i%/G/E$Lhqbnot merely be a technician with the black letter
law for his tools but a political advocate. To be a successful
political advocate, he needs to work in the context of the
structural imbalance he wishes to address. He cannot, therefore,
perpetually shroud himself in the sanctity of an air conditioned
office and at the same time address grassroots issues. Ancestral
Domain Recognition
One area where the variance between Indigenous Democracy and
Transplanted Democracy is best exemplified is the concept of
ownership as seen from the perspective of recognizing ancestral
domain rights.
A reasonable mind, untouched by years of carefully engineered
prejudices, would come to the conclusion that one's community
would be governed according to that very community's standards and
practices. Perhaps, even a veteran of the school of prejudice
would recognize this as true. Yet the most pressing and critical
problem being faced by indigenous cultural communities today is
the recognition and protection of their rights to
self-determination and the ownership of their ancestral domains.
Legally, the government has failed to provide any effective
mechanism by which to recognize and protect these rights. This
has resulted in the long history of displacement and disregard of
rights which all tribes in this country have suffered.
Recently, however, there is a growing realization that the
identification and delineation of ancestral domains will not be
enough. The protection of such domains, and of the people who
rely upon it for their socio-economic needs, is best ensured if
they are provided meaningful roles in the process of planning and
development on the local, regional and national levels. There is,
in short, a slow but decisive move towards self-determination.
A recognition of their private, though undocumented rights
and their right to self- determination are inherently linked
to other issues which any government must address if it is to
fulfill its responsibilities to its constituency: land use
policy, with implications on agrarian reform; local government
organization and representation; management of natural resources;
etc.
It cannot be denied that the country is confronted with an
ecological crisis of proportions greater than that for the rest of
the world. At the same time, the government is under immense
pressure to bring development to the people, particularly in the
countrysides.
Yet, in its attempts to seek a compromise, it has ignored
those who have the most to contribute to the historic search for a
balance between these two ends -- the indigenous peoples.
Having lived close to the land for centuries, they have
accumulated a knowledge based on intimate familiarity with their
respective areas, and on their shared, communal experience as a
people. Such knowledge, reflected in their culture, is an
expansive human resource which may very well be the answer to our
search for a proper and just resource management.
Here is where a the superseding of the indigenous legal
processes by a transplanted system has caused enormous harm. The
concept of ownership of lawyers is vastly different from that of
indigenous peoples. A lawyer would define ownership as " a
relation in private law by virtue of which a thing pertaining to
one person is completely subjected to his will in everything not
prohibited by public law or the concurrence with the rights of
another. Mac-liing Dulag, on the other hand, profoundly expresses
the indigenous concept thus: "How can you speak of owning the
land when the land owns us? Hoe can you own that which outlives
you?" Indigenous "ownership" is contingent on who makes the land
productive. Thus concentration of resources and undemocratic
allocation is prevented.
There are a few immutable principles of private property
present in our transplanted legal regime. That no person shall be
deprived of property without due process of law and that private
property shall not be taken for public use without just
compensation are recognized in law.
Since 1909, the Philippine Supreme Court has interpreted
private property to include lands occupied since time immemorial.
Thus, ancestral domains need not be "awarded" to indigenous
occupants as they are private and have never come under public
ownership. The Executive Branch, however, ignores this
interpretation and systematically perpetrates the unconstitutional
usurpation of ancestral property rights.
In 1964, Republic Act 3872 was passed by Congress which
sought to secure for indigenous occupants recognition of their
individual rights to agricultural land, regardless of whether they
land has been certified or declared as alienable and disposable.
This law has had no discernible impact. It was ignored by the
Executive branch. Instead, the Secretary of Justice issued in
1966 an opinion that RA 3872 merely provided preferential rights
contingent on a certification of alienable and disposable status.
In the 70's, another attempt was made to respond to this
plight. Presidential Decree 410 established a procedure for
acquisition of ancestral lands. The procedure, however, was so
bureaucratic that not a single person was able to avail of the
right granted by the Decree. Even worse, it provided a cut-off
period after which the preferential right of indigenous occupants
shall be lost.
Despite protections in the 1987 Constitution, ancestral
domains still remain effectively unrecognized and unprotected.
The chief usurpers are the concessionaires and plantation owners
who have, often with the permission of the Executive branch, taken
over vast tracts of ancestral lands, usually in utter disregard of
the rights and potentials of the communities adversely affected.
Due in no small measure to the laws decreed during martial
law designed to enhance the president's control over natural
resources, the DENR today exercises almost unrestrained control
over land tenure decisions affecting more than seventeen million
Filipinos living within the so-called public domain.
Two important pieces of legislation have been filed before
both houses of Congress regarding attempts at addressing this
distressing situation. Senate Bill 909 seeking to recognize
ancestral domain rights and to establish a Commission on Ancestral
Domain and a House Bill filed by several Congressmen led by Cong.
Claver seeking to create the Commission on Indigenous Cultural
Communities and Ancestral Domain.
The Senate Bill is currently on the Senate shelf, gathering
dust. The House Bill is on second reading.
In terms of content, the House Bill is commendable for its
understanding of the problems facing Indigenous Communities and
its commitment to respond thereto, In its zeal to resolve all the
problems, however, it suffers a basic flaw: It has too wide a
mandate and lacks a focus.
The Commission on Indigenous Cultural Communities and
Ancestral Domain sought to be established is a body with an overly
broad mandate. Most, if not all government programs affecting
indigenous peoples, regardless of their nature, will be controlled
by this Commission. It is projected that it will spread itself
too thinly as to make any substantial successes in any single
thing. It will merely duplicate the functions of other government
agencies and will end up similar to the former Office of Muslim
Affairs and Cultural Communities (now the Office of Muslim Affairs
and the Offices of Southern and Northern Cultural Communities).
The OMACC experience yields the conclusion that super-agencies
like these do not meet the needs demanded by the problems of the
indigenous peoples.
A more effective body would be an office with one central
focus: ancestral domain rights. Most advocates for
recognition of these rights will agree that this is the essential
precondition for the authentic development of the indigenous
cultural communities. If it is to go beyond the rhetorical
exhortations of the Constitution and President Aquino,
necessitates political will on the part of the body/persons who
will be tasked with making recognition effective. Moreover, the
process will be tedious and technical. Such a specialized body
will be more effective in the long term. If this is achieved,
there will be a body that will focus on the legal status of
ownership which indigenous peoples have over their lands and the
truth will finally out.
Another technical flaw from which the bill suffers is the
requirement that the Chairman and Associate Commissioners be
holders of college degrees. Many competent persons belonging to
indigenous cultural communities will be disqualified even as the
kind of work demanded by these positions may even be prejudiced by
the "education" which might make a person incapable of using the
indigenous peoples' perspectives.
The problem is clear and simple. Solving it is difficult and
challenges not only the legal system but more importantly the
deeply ingrained beliefs and prejudices of the actors therein.
But the indigenous peoples are ready. They have been for
centuries. The imperative is likewise clear and simple. It would
be no less than genocide for the Filipino if we allow ourselves to
lose the battle to our ignorance, inertia, inaction and
intransigence. (from the Sunday Inquirer Magazine)